Jones, R v

MR JUSTICE FRASER: On 12 February 2016, in the Crown Court at Wolverhampton, the appellant pleaded guilty at a pleas and case management hearing (as such hearings were then called) before Mr Recorder Sweeting QC, to one count of robbery contrary to section 8(1) of the Theft Act 1968. On 8 July 2016, Her Honour Judge Kristina Montgomery QC sentenced him to 4 years 6 months' imprisonment.

He was born on 5 May 1995 and the offence was committed on 15 December 2015. Accordingly, although he was over 21 as at the date of his conviction and sentence, he was in fact only 20 at the time that he committed the offence. The correct custodial sentence was therefore one of a term of detention in a Young Offender Institution, and not one of imprisonment. In opening the facts, the Crown incorrectly told the sentencing judge that he was 24 years old, which explains the error in her terminology. This is a subject to which we will return after dealing with the substantive appeal.

The appellant brings his appeals against sentence with the permission of Foskett J. He was sentenced with two co-defendants, Paul Ferguson, who was 35 years old, who was sentenced to 4 years 8 months (or potentially 4 years 10 months) and Lee Anslow, who was 28 at the time of the offence and who was given the same sentence. The difference in how we have expressed those two sentences arises because the judge expressed the sentence both as 58 months but then also said that that was 4 years 8 months, when in fact it is 4 years 10 months. Regardless of which of those two figures appears on the court record, the difference between those two is not relevant for the purposes of this appeal.

The appellant was sentenced without the sentencing judge having the benefit of a pre-sentence report. We are of the view that one is not now necessary and so under section 156 of the Criminal Justice Act 2003 we continue to hear the appeal and give judgment on that, and deal with his sentence, without requiring such a report.

The facts of the offences committed by the appellant and his co-accused are as follows. On 15 December 2015, at about 4.45 am, a Ford Focus car arrived at a 24-hour Asda store in Darlastan. The appellant and his two co-accused were passengers and a fourth person was driving. The driver remained outside as they entered the store. They had their hoods up, and the other two co-accused were wearing gloves. The appellant had socks on his hands. One of the other two, Anslow, was carrying a large wrench. A security guard was threatened with the wrench and made to kneel down. The guard was dragged to the cigarette kiosk where the appellant was standing, and the appellant and one of the others began to empty the kiosk of cigarettes into a large builders' bag. They managed to fill the builders' bag with about £9,000 worth of cigarettes and then went to leave. However, the bag was so full and heavy they could not get it through the doors behind the kiosk and so they had to abandon it.

At this point the police arrived and the getaway car that was parked outside sped off, leaving the three defendants behind. It was not known then, and is not known now, who the driver of that car was. That was still not the end of the matter, as a chase ensued. After a scuffle with one of the other co-accused who was arrested, one police officer required hospital attention. The appellant tried to run away but was arrested after a much shorter struggle with a police officer, but CS gas had to be used upon him by the police in order to effect the arrest. The third individual was arrested without incident.

The appellant admitted going to the ASDA store to steal the cigarettes but said that he thought it was going to be a burglary. He had met the others, he said, unaware that the shop would be open and that the customers and staff would be there for the offence. However, given this was a 24-hour store, that explanation can be seen as somewhat self-serving.

The sentencing judge found that the robbery was a less sophisticated commercial robbery which fell into category 2B of the guidelines, a characterisation with which the parties agreed. She found the correct starting point for the robbery was at the very top of the range for that category. The category range for that offence is 3 to 6 years and she therefore took a starting point for the appellant at the top of that bracket of 6 years. Due to the very bad record of previous offending by both Ferguson and Anslow, the two co-defendants, both of whom had significant offences of robbery on their criminal records, which had previously attracted significant custodial sentences expressed as 4 years and 54 months respectively for each of them, she found the correct starting point for them was outside the range and chose six and a half years.

That differential could have been more marked and it may have been the case that other sentencing judges would have decided that the difference between the appellant, and his co-accused, should have been greater. But, in our judgment, the judge properly addressed her mind to the fact that the culpability of the co-defendants was far higher than that of the appellant due to their previous relevant convictions. They were all entitled to credit of 25 per cent for their pleas of guilty, and that reduction was applied to the 6-year starting point for the appellant resulting in a sentence in his case of four and a half years. He had only relatively minor previous convictions, although there were a number of them, and these were for road traffic and theft offences. This offence, therefore, marked a step change in the seriousness of his offending. Prior to this offence his longest sentence had been 12 weeks in a Young Offender Institute for receiving stolen goods and driving whilst disqualified. That related to an offence in June 2015.

It is not argued on his behalf that this should not have been treated as a category 2B offence or that the starting point chosen by the sentencing judge of 6 years was manifestly excessive. Mr Close, who has appeared for the appellant before us today and has made the appeal very attractively and well, in our judgment, also accepts that the credit applied of 25 per cent for the guilty plea cannot be challenged.

The sole ground of appeal is that there was insufficient differentiation between the sentence passed on the appellant and the sentences passed upon his co-accused. His record was less serious by some margin and he was also much younger than the others. It is argued on his behalf that the differences between the culpability of the offenders was not accurately reflected in the different sentences passed upon them which has resulted in a difference between those sentences of only a few months.

The sentences judge described all three of the participants as having played an equal part in the robbery. Although one of them had a weapon, the wrench, and shouted instructions and threats at the staff, all three of them were treated as though they had played an equal part and, in our judgment, that is clearly correct. There is no criticism of that approach from Mr Close on the appeal before us.

Although previous convictions for robbery are a statutory aggravating feature and the appellant did not have any, in our judgment this was reflected in the fact that the sentencing judge chose a lower starting point for his sentence prior to the application of the discount to which he was entitled for pleading guilty, and she also expressly increased the starting point for the co-defendants. She clearly therefore had this point in mind.

The sole question for this court upon appeal is whether the sentence that was passed upon this appellant was manifestly excessive. Given the circumstances of this offence, the use of threats, including a weapon, the treatment of the guard, the resisting of arrest and the use of CS gas upon the appellant by the police, we are of the view that it cannot be said that the choice of starting point of 6 years at the top of the relevant range for category 2B offences was wrong or even slightly excessive in his case. His particular sentence of four and a half years, therefore, after application of the discount was not manifestly excessive and his appeal is dismissed.

We affirm the custodial sentence upon the appellant in terms of its correct characterisation being one of detention in a Young Offender Institution due to his age at the date he committed the offence, and not as it was expressed upon the sentencing exercise, which was as of a sentence of imprisonment. When a defendant is below the age of 21 at the date the offence was committed this is important, as it makes a person a young offender. The Crown must ensure that this is drawn to the attention of the sentencing judge at the time.

The appeal is therefore dismissed.